Harris v. Secretary, U.S, Dept. of Veterans Affairs

• Citation: 326 U.S.App.D.C. 362,126 F.3d 339
• Decision Date: 10 October 1997
• Docket Number: No. 96-5091,96-5091
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 1835, 72 Empl. Prac. Dec. P 45,265, 326 U.S.App.D.C. 362, 38 Fed.R.Serv.3d 771 Geraldine HARRIS, Appellant, v. SECRETARY, U.S. DEPARTMENT OF VETERANS AFFAIRS, and U.S. Department of Veterans Affairs, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 339

126 F.3d 339

74 Fair Empl.Prac.Cas. (BNA) 1835,

72 Empl. Prac. Dec. P 45,265, 326 U.S.App.D.C. 362,

38 Fed.R.Serv.3d 771

Geraldine HARRIS, Appellant, v. SECRETARY, U.S. DEPARTMENT OF VETERANS AFFAIRS, and U.S.

Department of Veterans Affairs, Appellees.

No. 96-5091.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 8, 1997.

Decided Oct. 10, 1997.

Appeal from the United States District Court for the District of Columbia (No. 92cv01785).

Karl W. Carter, Jr., Mount Rainier, MD, argued the cause and filed the briefs for appellant.

Marina Utgoff-Braswell, Assistant U.S. Attorney, Washington, DC, argued the cause for appellees, with whom Eric H. Holder, Jr., U.S. Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant U.S. Attorney, were on the brief.

Before: EDWARDS, Chief Judge, WALD and GARLAND, Circuit Judges.

Opinion for the Court filed by Chief Judge EDWARDS.

EDWARDS, Chief Judge:

This case requires the court to decide what course the District Court should take when a party raises the affirmative defense of statute of limitations for the first time in a dispositive motion, rather than in a responsive pleading as required by Rule 8(c) of the Federal Rules of Civil Procedure. Appellant Geraldine Harris (Geraldine Harris Coombs at the time of the events in question) sued Appellee Department of Veterans Affairs ("Department") for racial discrimination under Title VII, 42 U.S.C. § 2000e et seq. (1994). She filed her complaint in District Court ninety-one days after the date on the certified mail return receipt attached to the notice of final agency decision against her, one day beyond the statutory limit. See 42 U.S.C. § 2000e-16(c) (1994). The Department did not raise the defense of untimeliness in any of its answers. After discovery, during which the Department made inquiries about the date Harris received notice, the Department filed for summary judgment on untimeliness grounds. Although Harris contended that the date on the mail receipt was in error, the District Court rejected her explanation, granted summary judgment in favor of the Department, and then dismissed Harris's reprisal claims for want of jurisdiction.

We reverse and remand. Rule 8(c) means what it says: affirmative defenses must be raised in a responsive pleading, not a dispositive motion. This requirement permits the parties to chart the course of litigation in advance of discovery and motions thereon. Because the Department did not raise the defense in a responsive pleading and did not apply to the District Court for leave to amend its answer under Rule 15(a), the Court should not, without more, have considered the defense of untimeliness. However, this procedural error need not necessarily cause loss of the defense. On remand, the government may seek leave to amend its answers. We also reverse and remand the District Court's dismissal of Appellant's reprisal claims. Because untimeliness is not a jurisdictional defense under Title VII, the District Court had discretion under 28 U.S.C. § 1367(c) (1994) to retain jurisdiction over supplemental reprisal claims even if it dismissed the underlying Title VII claim for untimeliness.

I. BACKGROUND

By a complaint filed on July 31, 1992, Appellant brought suit in District Court charging the Department with discrimination under Title VII. During her deposition on June 23, 1993, Harris initially stated that she received a copy of the agency's final decision on May 2, 1992. Deposition of Geraldine Harris Coombs, Appendix for Appellees ("App. for Appellees") 13. The Assistant U.S. Attorney ("AUSA") conducting the deposition showed Harris her signature on a certified mail receipt dated May 1, 1992; Harris then stated that she received the notice on May 1, and that her mistake resulted from her noting "May 2" on the envelope. Id. at 14. Her testimony also suggested that she erred in counting the days by assuming that each month had thirty days. Id. at 17.

Harris twice moved to amend her complaint to include allegations that the Department engaged in reprisal against her by changing her job duties and denying her requests for leave. The District Court granted those motions to amend. The Department did not raise the affirmative defense of untimeliness in any of its answers to the initial complaint or the amendments. It was not until after discovery when the Department moved for dismissal of the case as untimely in a motion for summary judgment. On April 24, 1995, the Magistrate Judge recommended dismissal. Harris excepted to the Magistrate's recommendation, supporting her exception with a new affidavit, dated May 4, 1995. There, she stated that she had in fact received the notice on Saturday, May 2, 1992, and had so noted on the envelope. She further stated that she was at work on May 1, 1992, from 10:00 a.m. until 5:30 p.m. according to her time sheet, which she submitted. She added that she could not have received the letter on May 1, because according to a postal supervisor with whom she had spoken, mail was not delivered before 10:00 a.m. and after 5:30 p.m. She further asserted that the "May 1" date stamped on both the postal delivery notice and return receipt was in error. Plaintiff's Affidavit in Support of Her Exception to the Magistrate's Report and Recommendation, Appellant's App. 47-48. The delivery notice, which Appellant submitted as evidence, was dated April 30, and said "You may pick up your mail after 8:30 a.m. [on] 5/1." Delivery Notice, reproduced in Appellant's App. at 50. It was stamped May 1, 1992, and signed "Geraldine H. Coombs." Id. The return receipt was also stamped May 1, 1992 and signed "Geraldine Harris Coombs." Domestic Return Receipt, reproduced in Appellant's App. at 51.

The District Court granted the Department's motion, which it treated as one for summary judgment. Coombs v. Secretary of the Department of Veterans Affairs, No. 92-1785, 1995 WL 450516, slip op. at 2 n.1 (D.D.C. July 20, 1995), reprinted in Appellant's App. at 21. The District Court judge found that there was no genuine issue of material fact as to the timeliness of Harris's filing. Id. at 5-7. He noted that the time sheet made no specific showing that Harris did not leave work, and that the postal supervisor's statement did not address 1992 practices and was in any case hearsay. Id. at 6-7. He further observed that a delivery notice left at Harris's home on April 30 indicated that she could pick up mail at the post office on May 1 any time after 8:30 a.m., allowing Harris time to pick up the notice and then arrive at work by 10:00 a.m. Id. at 7 n. 2. Next, he found that there was no basis for equitable tolling of the statute. Id. at 7-9.

Finally, the District Court rejected Harris's contention that the Department had waived the statute of limitations defense by failing to plead it in any of its three answers to Harris's initial complaint and two subsequent amended complaints. Citing caselaw from other circuits, the District Court held that a party could raise an unpled affirmative defense by motion if the late raising did not prejudice the opposing party by denying it notice. Id. at 10. The District Court noted that Harris did not claim prejudice and found that Harris did not suffer prejudice as a result of the late raising of the issue, because she had two opportunities to respond to the claim: one in her exception to the Magistrate's report, the other in her opposition to the Department's motion for summary judgment. Id. at 10-11.

Subsequently, the District Court dismissed Appellant's reprisal claims. The court explained that it lacked supplemental jurisdiction because the original claim was never properly before the court. Coombs v. Secretary of the Department of Veterans Affairs, No. 92-1785, order at 2 (D.D.C. Feb. 23, 1996), reprinted in Appellant's App. 58. Appellant appealed the summary judgment and dismissal of the reprisal claims to this court.

II. ANALYSIS

A. Timeliness of Affirmative Defenses

The issue in this case regarding the timeliness of affirmative defenses requires construction of Rule 8(c). Because this is a legal issue, we review the District Court's interpretation of Rule 8(c) de novo. Harbeson v. Parke Davis, Inc., 746 F.2d 517, 520 (9th Cir.1984). ¹ This court has not heretofore decided whether a defendant may raise an affirmative defense for the first time in a dispositive motion, or whether failure to raise the defense in pleadings constitutes forfeiture under Rule 8(c). The language of Rule 8(c) itself requires that the defense of statute of limitations be raised affirmatively in "a pleading to a preceding pleading." FED.R.CIV.P. RULE 8(c). Although the Rules do not explicitly mention waiver or forfeiture as the consequence of failure to follow Rule 8(c), it is well-settled that "[a] party's failure to plead an affirmative defense ... generally 'results in the waiver of that defense and its exclusion from the case.' " Dole v. Williams Enterprises, Inc., 876 F.2d 186, 189 (D.C.Cir.1989) (emphasis in original, quoting 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1278 (1990)). More specifically, "[r]eliance on a statute of limitations is an affirmative defense and is waived if a party does not raise it in a timely fashion." Banks v. Chesapeake and Potomac Telephone Co., 802 F.2d 1416, 1427 (D.C.Cir.1986) (citations omitted). ²

The Supreme Court has explained that the purpose of the pleading requirement of Rule 8(c) "is to give the opposing party notice of the plea of estoppel and a chance to argue, if he can, why the imposition of an estoppel would be inappropriate." Blonder-Tongue Lab. v. University of Illinois Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788 (1971). The same rationale the Court invoked regarding collateral estoppel applies with equal or greater force to the defense of the statute of limitations, where a party may require notice and time not only to...